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Toni Anne Wyner has been taking her clothes off in the name of art and free expression at MacArthur Beach in South Florida for more than 20 years. But when the case that bears her name, Sole v. Wyner, is argued before the Supreme Court April 17, the First Amendment will probably not even get a mention. Instead, the issue will be attorney fees, argued in a context that may be crucial for the future of all public interest litigation. Specifically, the fee at issue is the $25,924 Wyner and lower courts thought her lawyers deserved for the work they did to win a preliminary injunction against the state of Florida in February 2003. That injunction ordered the state not to interfere with Wyner and fellow naturists as they formed a nude peace symbol on the public beach to protest the then-impending war in Iraq. “A peace sign made by nude bodies is a symbol of the vulnerability of all humans,” Wyner explains. The injunction was all Wyner wanted from her lawsuit, because it meant her protest could take place — and it did. But Florida, joined by 24 other state governments and the Bush administration, claims that because a preliminary injunction is not a final judgment, Wyner does not qualify as a “prevailing party” for the purposes of fee-shifting statutes, so her lawyers, James Green and Randall Marshall, should not get any money from the state. Marshall is an American Civil Liberties Union lawyer in Miami, and Green is a private practitioner in West Palm Beach. Wyner sees a direct line between the states’ argument and freedom of speech, even if the First Amendment never comes up April 17. Ruling out attorney fees, she says, “is just another arrogant tactic to deny free speech in a quintessential public forum.” Without the prospect of attorney fees, she adds, “just think of all the attorneys who will fall out and not take cases like mine.” That concern has transformed Sole v. Wyner from a quirky case with unusual facts into the next major battlefield between public-interest groups and government over fee-shifting statutes. “This could have a very big impact for public-interest groups that often find local lawyers to carry the litigation ball,” says Andrew Pincus, partner at Mayer, Brown, Rowe & Maw. “Those lawyers are going to be a lot more reluctant to take on the cases” if Florida wins. ODDS AND ENDS One sign of the broad interest in the case is the brief Pincus wrote on behalf of an odd coalition of public-interest groups that often oppose each other — ranging from Americans United for Separation of Church and State to the Rutherford Institute to the Institute for Justice and Public Citizen. All the diverse groups, says Pincus, agree that precluding fees in all preliminary-injunction cases would “significantly chill the enforcement of constitutional and statutory rights.”
Court Quickens Its Pace
Crunch time is coming early this term at the Supreme Court.It’s not just that the Court is substantially behind in issuing opinions — only 22 so far this term, compared to 35 at this point last term. Several of its knottiest issues — “partial-birth abortion” and the use of race in public-school class assignments, to name two — have yet to emerge.In addition, for its two-week argument cycle beginning April 16, its final cycle for the term, the Court will hear oral arguments in 16 cases. That’s up from the 12 cases per cycle that has been the norm in recent years. On four out of the six days of arguments (the Court operates on a Monday-Tuesday-Wednesday argument schedule), it will hear three, whereas on most other days this term, it has heard only two. On several days in February and March, it only heard one case.All of which is likely to make May and part of June a seven-day-a-week affair for the law clerks, if not for the justices, and will probably make for frayed nerves and fractured rulings.But for Court advocates and others with a long memory, the April calendar does not look like a crippling burden. Late into the 1980s, it was routine for the justices to hear four cases each day — a total of 24 cases in each of seven cycles. The Court decided 150 cases a term then, nearly twice as many as today.Sidley Austin’s Carter Phillips, who clerked for Chief Justice Warren Burger in 1978, confessed that he can’t muster “a whole lot of sympathy” for the law clerks as they cope with the April calendar. He remembers May of his term at the Court as intensely busy, but says that for the rest of the term, “you pace yourself. It didn’t seem particularly back-breaking.”How did the April calendar get so full, relatively speaking? Advocates who wanted the Court to hear their cases this term rather than being bumped into the next one may have created something of a pileup. Some savvy advocates also try to file their petitions during an elusive “sweet spot” in the wintertime, when fewer petitions are competing for the Court’s attention and justices, eager to fill their calendar, are more receptive.Adding to the crunch this term is the fact that April’s cases include several that are controversial and complex.In Panetti v. Quarterman, set for argument April 18, the Court is asked to decide when a death-row inmate is so mentally ill that he is not competent to be executed. Texas inmate Scott Panetti believes he is being put to death by “forces of evil” to prevent him from teaching the Gospel.Also on April 18, the Court will hear an important employment-discrimination case, BCI Coca-Cola Bottling Co. v. Equal Employment Opportunity Commission. The case asks whether the company should be held liable under Title VII of the Civil Rights Act of 1964 for firing Stephen Peters, an African-American employee at its Albuquerque, N.M., plant. The EEOC claims a supervisor displayed racial bias toward Peters, but it was another company official who actually fired Peters.Another employment case will be argued April 24, but in an unusual context — the office of a United States senator. In Dayton v. Hanson, Brad Hanson, an ex-aide to then-Sen. Mark Dayton (D-Minn.), challenges his firing shortly after he had heart surgery. An issue in the case in lower courts was how much protection the Constitution’s speech and debate clause — which insulates congressional lawmaking activities from attack by other branches of government — gives to members of Congress in their employment decisions.On April 25, the last oral argument day of the term, the Court will hear two complex campaign-finance cases, Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, that could benefit from a more leisurely pace of consideration.The cases test the McCain-Feingold campaign-finance law’s ban on the use of direct corporate funds to finance “electioneering communications” before primaries and elections. Wiley Rein’s Jan Baran, who wrote a brief in the case for the U.S. Chamber of Commerce, says the short time frame for deciding the case should not be a hindrance. With its extensive review of the McCain-Feingold law in past cases, Baran says, “the Court is already pretty familiar with the issue.” — Tony Mauro

On the other side, states warn that if a mere preliminary injunction can trigger a fee award, the result will be a “considerable drain” on already-strained budgets. Virginia Solicitor General William Thro, representing the 24 states, also argues that state and local government would face “costly disincentives to enforce their laws.” Wyner’s adversaries go on to point out that even though Wyner won an injunction and a fee award, her separate challenge to the law banning beach nudity ultimately failed, and the law is still on the books. Preliminary injunctions are decided in abbreviated proceedings without full briefing, making it “fundamentally unfair” to dun states for attorney fees, argues Virginia Seitz of Sidley Austin, who is representing the head of Florida’s Department of Environmental Protection, Michael Sole. The Supreme Court itself escalated the attorney-fee battle when it ruled in 2001 in the case Buckhannon v. West Virginia Department of Health & Human Services. That ruling upended decades of tradition rooted in the civil-rights statutes of the 1960s. Under the traditional “American rule,” parties in almost all litigation pay their own costs. But the civil-rights laws and 42 U.S.C �1988 made an exception to that rule, rewarding private plaintiffs for vindicating and enforcing civil-rights law through litigation as “private attorneys general.” Civil-rights plaintiffs could recover their attorney fees and costs from their government adversaries if their lawsuits were the “catalyst” for change in government actions or policy — even if there was no formal ruling by a judge declaring victory for the plaintiff. But in Buckhannon, a 5-4 decision authored by the late Chief Justice William Rehnquist, the Court put an end to the catalyst theory, insisting instead that a judge must grant “some relief” in an actual decision before the plaintiff can qualify as a “prevailing party” and recover attorney fees. In the Buckhannon case, a lawsuit against regulations relating to assisted-living facilities prompted a legislative response that cured the problem. But because there was no judicial resolution, attorney fees were barred. Public-interest groups had warned in Buckhannon that if the catalyst theory was struck down, government agencies could avoid ever paying attorney fees merely by settling or capitulating on the eve of a judge’s ruling or trial. They also complained that plaintiffs would be deterred from bringing cases in the first place because of uncertainty about recovering fees. Rehnquist wrote, “We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence.” BEING BUCKHANNONED Nearly six years later, the empirical evidence is in, according to Northwestern University professor Laura Beth Nielsen and Catherine Albiston, a professor at the University of California, Berkeley’s Boalt Hall School of Law. In a forthcoming article in UCLA’s law review, they report on an extensive survey of public-interest organizations — both liberal and conservative — conducted in 2004. They found broad agreement “across the political spectrum” that Buckhannon has in fact discouraged litigation and has also discouraged settlement of cases that have been brought — apparently because litigants want to hold out for a judicial ruling that might trigger a fee award. The post-Buckhannon trend, they say, amounts to a little-noticed sneak attack on civil-rights enforcement. And it signals “an ominous shift of power away from private enforcement of rights and toward government power.” In a brief filed in the Wyner case, Albiston estimates that more than 90 percent of civil-rights actions are brought by private lawyers rather than government agencies. One special victim of the Buckhannon decision has been litigation under the Freedom of Information Act, says Brian Wolfman. Wolfman is director of the Public Citizen Litigation Center, which has participated in more than 300 FOIA lawsuits seeking documents from recalcitrant government agencies. “We get �Buckhannoned’ all the time,” he says, explaining that it is particularly easy for government agencies to avoid paying attorney fees in FOIA cases. Even after protracted and costly litigation is under way, Wolfman says, the agency can easily moot the case at the 11th hour, just shy of a judicial ruling. “All they have to do is hand you the documents you want,” he says. Without a judge’s ruling, the plaintiff is left empty-handed in terms of attorney fees, even though the plaintiff has gotten everything it wants from the government agency. Wolfman declines to accuse government bureaucrats of using this tactic intentionally to deplete plaintiffs’ funds, but Albiston calls it “strategic capitulation.” A separate case currently before the Court, Davis v. United States, challenges the extension of the Buckhannon rule into attorney-fee disputes arising from the FOIA. Significantly, the Court last month ordered the government to reply to the petition by April 25. Other briefs in Wyner’s case demonstrate how a ban on fees for those who win preliminary injunctions would fit into the larger battle over fee-shifting. In voting-rights cases, for example, according to the Brennan Center for Justice, money damages are usually not available. “A preliminary injunction is often not a prelude to some final relief, but instead represents all or a substantial part of the relief sought by a litigant,” the brief by Laura Brill of Irell & Manella states. “Indeed, often a preliminary injunction is the only relief that can be secured before the election itself moots the case.” Wyner says she won’t attend the Court hearing April 17, and she won’t be demonstrating outside either, nude or clothed. In a sense she has already moved on. She and other naturists have continued to demonstrate and put on plays in the nude at MacArthur Beach in Palm Beach County, especially when nudists from around the nation converge there in February. When Wyner does go “top-free,” as she puts it, she no longer seeks permission from a judge or from the state. “The First Amendment is my permit.”

Tony Mauro can be contacted at [email protected].

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